HBA-NMO C.S.H.B. 1516 76(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 1516
By: Gallego
Criminal Jurisprudence
4/30/1999
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

The 74th Texas Legislature enacted legislation requiring the court of
criminal appeals to  appoint and pay counsel to represent indigent death
row inmates in their applications for writs of habeas corpus in state
court.  C.S.H.B. 1516 requires the convicting court, rather than the court
of criminal appeals, to appoint and pay counsel to represent indigent death
row inmates in their applications for a writ of habeas corpus in state
court, but requires the state to reimburse a county for compensation paid
to such counsel up to $25,000.  This bill also provides new procedures for
seeking an extension to applying for a writ of habeas corpus,  provides new
procedures in the event of an application that is not filed or filed
untimely, and makes other procedural changes concerning this process.    

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis rulemaking authority
is expressly delegated to the court of criminal appeals in SECTION 1
(Section 2, Article 11.071, Code of Criminal Procedure) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 2, Article 11.071, Code of Criminal Procedure,
to delete language providing that a defendant must be sentenced to death on
or after September 1, 1995, before a convicting court is required to
determine if the defendant is indigent and, if so, whether the defendant
desires appointment of counsel for the purpose of a writ of habeas corpus
(habeas counsel).  Requires the convicting court, at the earliest practical
time, but in no event later than 30 days after the convicting court makes
the findings regarding indigence and habeas counsel, to appoint competent
habeas counsel.  Deletes language requiring the court of criminal appeals
to appoint competent habeas counsel.  Requires the court of criminal
appeals to adopt rules and standards for the appointment of attorneys as
habeas counsel and authorizes the convicting court to appoint an attorney
as counsel under this section only if the appointment is approved by the
court of criminal appeals in any manner provided by those rules.  Requires
the attorney to immediately file a copy of the motion to be appointed as
counsel or for the appointment of other counsel in federal habeas review
with the court of criminal appeals.  Authorizes the court, if the attorney
fails to file a copy of the motion, to take action to ensure that the
applicant's right to federal habeas review is protected.  Requires the
convicting court, rather than the court of criminal appeals, to reasonably
compensate an attorney appointed under this section.  Makes conforming and
nonsubstantive changes.   

SECTION 2.  Amends Article 11.071, Code of Criminal Procedure, by adding
Section 2A, as follows: 

Sec. 2A.  STATE REIMBURSEMENT; COUNTY OBLIGATION.  (a) Requires the state
to reimburse a county for compensation of counsel under Section 2 of this
article and payment of expenses under Section 3.  Prohibits the total
amount of reimbursement to which a county is entitled under this section
for an application under this article from exceeding $25,000.  Provides
that compensation and expenses in excess of $25,000 are the obligation of
the county. 

(b) Requires a convicting court seeking reimbursement for a county to
certify to the comptroller of public accounts (comptroller) the amount of
compensation that the county  is entitled to receive.  Requires the
comptroller to issue a warrant to the county in the amount certified by the
convicting court, not to exceed $25,000. 


SECTION 3.  Amends Section 3, Article 11.071, Code of Criminal Procedure,
by amending Subsections (b) and (d), to make conforming changes. 

SECTION 4.  Amends Section 4, Article 11.071, Code of Criminal Procedure,
to authorize the convicting court, before a specified filing date, for good
cause shown and after notice and an opportunity to be heard by the attorney
representing the state, to grant one 90-day extension that begins on a
specified filing date.  Authorizes either party to request that the court
hold a hearing on the request. Requires the convicting court, if it
receives either an untimely application or no application, to send within
10 days to the court of criminal appeals and to the attorney representing
the state a copy of the untimely application and a statement identifying it
as untimely, or a statement explaining that no application has been filed,
and any order the judge of the convicting court determines should be
attached to an untimely application or statement of no application.
Deletes existing text concerning an applicant's ability to establish good
cause for not filing a timely application by showing particularized
justifying circumstances.  Makes conforming and nonsubstantive changes. 

SECTION 5.  Amends Article 11.071, Code of Criminal Procedure, by adding
Section 4A, as follows: 

Sec. 4a.  UNTIMELY APPLICATION; APPLICATION NOT FILED.  (a) Requires  a
counsel who files an untimely application or fails to file an application
before the applicable filing date, on command of the court of criminal
appeals, to show cause as to why.     

(b) Authorizes the court of criminal appeals, at the conclusion of the
counsel's presentation to the court, to find that good cause has not been
shown and dismiss the application; permit the counsel to continue
representation of the applicant and establish a new filing date for the
application, which may be not more than 180 days from the date the court
permits the counsel to continue representation; or appoint new counsel to
represent the applicant and establish a new filing date for the
application, which may be not more than 270 days from the date the court
appoints new counsel. 

(c) Authorizes the court of criminal appeals to hold in contempt counsel
who files an untimely application or fails to file an application before
the appropriate filing deadline. Authorizes the court of criminal appeals
to punish as a separate instance of contempt each day after the first day
on which the counsel fails to timely file the application.  Authorizes the
court of criminal appeals, in addition to or in lieu of holding counsel in
contempt, to enter an order denying counsel compensation. 

(d) Requires the court of criminal appeals, if it establishes a new filing
date for the application, to notify the convicting court of the fact and
requires the convicting court to proceed under this article. 

(e)  Provides that the provisions of this article regarding compensation
and reimbursement of counsel apply to new counsel appointed under
Subsection (b) in the same manner as if counsel had been appointed by the
convicting court. 

(f) Requires the court of criminal appeals, notwithstanding any other
provision of this article, to appoint counsel and establish a new filing
date for application, which may be no later than the 270th day after the
date on which counsel is appointed, for each applicant who before September
1, 1999, filed an untimely application or failed to file an application on
an appropriate date.  Provides that the compensation and reimbursement
provision applies to counsel appointed under this subsection. 

SECTION 6.  Amends Section 5, Article 11.071, Code of Criminal Procedure,
by amending Subsection (a) and (b) and adding Subsection (f), as follows: 

 (a) Makes conforming changes.

(b) Makes conforming changes.

(f) Requires the court, if an amended or supplemental application is not
filed within the time specified, to treat the application as a subsequent
application under this section. 

SECTION 7.  Amends Section 5, Article 11.071, Code of Criminal Procedure,
as follows: 

Sec. 5.  New Title:  SUBSEQUENT APPLICATION.  Deletes "or untimely."

SECTION 8.  Amends Section 6(b), Article 11.071, Code of Criminal
Procedure, to make a conforming change. 

SECTION 9.  Amends Section 7(a), Article 11.071, Code of Criminal
Procedure, to require the state to file an answer to the application for a
writ of habeas corpus not later than the 120th, rather than the 30th, day
to prohibit the convicting court, when the state has requested an extension
to answer an application, from permitting the state to file an answer later
than 180 days after the date the state receives notice of the writ. 

SECTION 10.  Amends Section 9(b), Article 11.071, Code of Criminal
Procedure, to require the convicting court to hold the evidentary hearing
not later than the 30th day after the date on which the court entered the
order designating issues that it determines are controverted or previously
unresolved.  Deletes language requiring the convicting court to allow the
applicant and the state not less than 10 days to prepare for a evidentary
hearing.  Makes conforming changes. 

SECTION 11.  Effective date: September 1, 1999.
Makes application of this Act prospective.

SECTION 12.  Emergency clause.  

COMPARISON OF ORIGINAL TO SUBSTITUTE

The substitute differs from the original in SECTION 1 (Section 2, Article
11.071, Code of Criminal Procedure) by authorizing a convicting court to
appoint an attorney as counsel under this section only if the appointment
is approved by the court of criminal appeals in any manner provided by
those rules, rather than rules and standards.  Further modifies this
section by requiring the attorney to immediately file a copy of the motion
to be appointed as counsel or for the appointment of other counsel in
federal habeas review with the court of criminal appeals; and by
authorizing the court, if the attorney fails to file a copy of the motion,
to take action to ensure that the applicant's right to federal habeas
review is protected. 

The substitute differs from the original in SECTION  3 by removing proposed
Section 3(f), Article 11.071, Code of Criminal Procedure, which would have
authorized the convicting court, on request of court appointed counsel, to
order any counsel who represented the applicant at trial or on direct
appeal to produce for inspection all trial files or appeals files relating
to the applicant's case. 

The substitute differs from the original in SECTION 4 (Section 4, Article
11.071, Code of Criminal Procedure) by authorizing the convicting court,
before a specified filing date, for good cause shown and after notice and
an opportunity to be heard by, rather than a hearing with notice to, the
attorney representing the state, to grant one 90-day extension that begins
on a specified filing date.  Modifies this section by authorizing either
party to request that the court hold a hearing on the request for a writ of
habeas corpus.  Further modifies this section by requiring the convicting
court, if it receives either an untimely application or no application, to
send within 10 days, rather than immediately, to the court of criminal
appeals and to the attorney representing the state a copy of the untimely
application and a statement identifying it as untimely, or a statement
explaining that no application has been filed, and any order the judge of
the convicting court determines should be attached to an untimely
application or statement of no application.  Removes from the previous
provision language requiring of the convicting court to send a copy of the
order scheduling the applicant's execution,  if scheduled. 

The substitute differs from the original in SECTION 5 (proposed Section 4A,
Article 11.071, Code of Criminal Procedure) by authorizing the court of
criminal appeals, at the conclusion of the counsel's presentation to the
court to permit the counsel to continue representation of the applicant and
establish a new filing date for the application, which may be not more than
180, rather than 270, days from the date the court permits the counsel to
continue representation.  Further modifies this section by removing
language from proposed Subsection (f) which would have provided that
Subsection (f) expires on September 1, 2000. 

The substitute differs from the original in SECTION 6 (Section 5, Article
11.071, Code of Criminal Procedure) by making a nonsubstantive change. 

The substitute differs from the original in SECTION 9 (Section 7(a),
Article 11.071, Code of Criminal Procedure) by requiring the state to file
an answer to the application for a writ of habeas corpus not later than the
120th, rather than 30th, day after the date the state receives notice of
issuance of the writ.  Further modifies this section by prohibiting the
court, in any event, from permitting the state to file an answer later than
the 180th, rather than 120th, day after the date the state receives notice
of issuance of the writ. 

The substitute differs from the original in SECTION 11 by making
application of this Act prospective.